Davis v. United States
| Decision Date | 23 February 1928 |
| Docket Number | No. 7706.,7706. |
| Parties | DAVIS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
T. J. Hoolan, of St. Louis, Mo., for plaintiff in error.
Arthur A. Hapke, Asst. U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States.
Before KENYON and BOOTH, Circuit Judges, and MUNGER, District Judge.
This is a writ of error to a judgment of conviction for violations of sections 3258, 3257, 3281, 3282, Revised Statutes (USCA tit. 26, §§ 281, 261, 306, 307 Comp. St. §§ 5966, 5993, 5994, 6021, 6022), relating to internal revenue.
Davis, plaintiff in error, was indicted with three others, Harry Riechmann, Thomas Lewis, and George Meyer. The indictment contained four counts. The first, which may be taken as typical, was as follows:
"That on or about the 22d day of November, A. D. 1922, in the county of St. Louis, in the state of Missouri, within the division and district aforesaid, and within the First internal revenue district of Missouri, and within the jurisdiction of the court aforesaid, Harry Riechmann, Arthur Davis, Thomas Lewis, and George Meyer did willfully, unlawfully, and feloniously have in their possession and under their custody and control a certain still set up, and that the said Harry Riechmann, Arthur Davis, Thomas Lewis, and George Meyer had unlawfully failed and neglected to register the same with the collector of internal revenue of the United States within and for the First internal revenue district of Missouri, by subscribing and filing with the said collector of internal revenue of the United States aforesaid, immediately upon said still being set up, or at any time thereafter, duplicate statements in writing, setting forth the particular place where said still was set up, the kind of still so set up, the cubic contents thereof, the owner or owners thereof, his or their place or places of residence, and the purpose for which the said still had been or was intended to be used, and that said still consisted of a boiler, cooker, worm and condenser, together with all other necessary attachments and adjustments thereto pertaining, necessary and essential for the operation thereof, and which said still was then and there capable of and was intended and designed on the parts of the said Harry Riechmann, Arthur Davis, Thomas Lewis, and George Meyer, for the unlawful production of distilled spirits for beverage and commercial purposes."
The second count charged the actual distilling of spirits with intent to defraud the government of the tax. The third count charged the carrying on the business of distillers without authority and without giving bonds. The fourth count charged the possession of 15,000 gallons of mash.
Riechmann pleaded guilty and testified for the government. The jury disagreed as to Lewis and Meyer. Davis was found guilty on all four counts. He was sentenced to one year and one day at Leavenworth on each count, the sentences to run concurrently. A fine was also imposed upon him on each count. The evidence tended to show the following salient facts:
On the evening of November 22, 1922, several prohibition agents visited the farm of Riechmann, a short distance outside the city of St. Louis. Acting under a warrant, they searched the premises. They found a small shed about 40 feet from the house. The shed was divided by a partition into two rooms. In one room they found Lewis and Meyer; also two cans of alcohol, a pump, and two baskets of lunch. In the other room they found Davis; also a still set up and in operation. Alcohol was running from the still. North of the shed was a vat, dug in the ground and lined with cement. A rubber pipe led from the vat to the pump. The vat contained about 15,000 gallons of fermented mash. Riechmann was found in the house. All four of the defendants were arrested, and, after Davis had made some change in his clothing, all were taken to the city. Davis said to one of the agents after his arrest:
On the trial Riechmann testified that some days prior to the raid Davis and a man named Logenbach came out to his farm and wanted to rent shedroom; that he rented the shed to them for $200 a month; that he dug the hole for the vat, for which he was to receive $20; that Logenbach paid him $10; that Logenbach and Davis brought out a plasterer, who cemented the vat; that Davis and Logenbach helped the plasterer; that Davis helped fill the vat with water; that Davis, Logenbach, and he set up the still; that Logenbach started the fire under the still the night before the raid, and took care of it that night, and until Davis came, with Lewis and Meyer; that Logenbach and a man he had with him as helper left about the time Davis, Lewis, and Meyer came; that some time after the raid the four defendants had a conference with Logenbach relative to getting a lawyer. Riechmann admitted that he had been convicted of felony and had served his sentence; that he hoped to escape going to prison again by testifying for the government.
Davis testified in his own behalf that he was at the farm in the shed at the time of the arrest; that he had no interest in the still; that Logenbach had told him he was starting up, and he went out sightseeing, just to see how it worked; that Logenbach was there when he arrived, but left shortly after, saying that he was going to get a load of cans, and would be back and show them how it worked; that they waited there about two hours and a half and then were arrested; that they had a...
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